2016 SCC Vol. 1 January 21, 2016 Part 3

Building and Other Construction Workers’ Welfare Cess Act, 1996 — S. 3 — Cess on construction works: Cess on construction works could be imposed even prior to date of constitution of the State Board (the M.P. Building and Other Construction Workers’ Welfare Board in this case). [A. Prabhakara Reddy & Co. v. State of M.P., (2016) 1 SCC 600]

Civil Procedure Code, 1908 — Or. 22 Rr. 3, 4, 9 and 11 — Doctrine of abatement — Applicability of, to appeals: Application to bring legal representatives of the deceased appellant on record revives, once appeal is restored. Doctrine of abatement is applicable equally to a suit as well as to an appeal. [Banwari Lal v. Balbir Singh, (2016) 1 SCC 607]

Civil Procedure Code, 1908 — Or. 6 R. 17 — Amendment in plaint: Once amendment in plaint vide which relief of declaration of title was incorporated, was allowed and not challenged by defendants, the issue with regard to limitation had to be decided in favour of plaintiffs. [Vasant Balu Patil v. Mohan Hirachand Shah, (2016) 1 SCC 530]

Criminal Procedure Code, 1973 — S. 125 — Maintenance — Entitlement to: As First wife was staying separately due to second marriage of husband, who had been convicted for offence of bigamy, it cannot be said that the appellant is staying separately without any justifiable reason. She should be maintained by respondent husband. Trial court directed to take appropriate decision regarding payment of maintenance. [Munni Bai v. Bhanwarilal, (2016) 1 SCC 621]

Criminal Procedure Code, 1973 — S. 197 — Government doctors — Criminal negligence by: In a case of death caused by alleged negligence in Government Hospital, sanction for prosecution is necessary. [Manorama Tiwari v. Surendra Nath Rai, (2016) 1 SCC 594]

Criminal Procedure Code, 1973 — S. 250 — Grant of compensation to accused under: As there was absence of evidence to show malicious prosecution of accused and there was no material to show that prosecution deliberately roped in accused persons, also nothing was there to remotely suggest that there was any mala fide or malice like fact situation. Hence, order granting compensation set aside. [State of Rajasthan v. Jainudeen Shekh, (2016) 1 SCC 514]


Criminal Procedure Code, 1973 — Ss. 167(2), 309(2) and 173(8) — Grant of police remand: Grant of police remand in respect of absconding accused persons arrested during further investigation after filing of charge-sheet against them is permissible subject to requirements of S. 167. Law laid down in Dawood Ibrahim Kaskar, (2000) 10 SCC 438, applied. Expression “accused if in custody” in S. 309(2) CrPC, as clarified in Dawood Ibrahim Kaskar case, does not include accused who is arrested on further investigation before supplementary charge-sheet is filed. [CBI v. Rathin Dandapat, (2016) 1 SCC 507]

Criminal Procedure Code, 1973 — Ss. 374 and 386 — Appeal against conviction: In this case, appellant attacked the deceased with a “khukri”, causing her death, thereafter, he hit himself with the same “khukri” below his naval and fell unconscious. High Court did not appraise evidence regarding assault allegedly made by R, brother of deceased upon accused and affirmed conviction. First appellate court is required to reappraise the prosecution evidence particularly in the light of the grounds urged on behalf of appellant. As no such effort is made by High Court, matter remanded to High Court for disposal in accordance with law on merits. [Dinesh Lal v. State of Uttarakhand, (2016) 1 SCC 590]

Criminal Trial — Circumstantial evidence — Last seen together — Theory of: “Last seen theory” is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. But, it is not prudent to base conviction solely on “last seen theory”. Such theory should be applied, taking into consideration case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long, it would be unsafe to base conviction on “last seen theory”. It is safer to look for corroboration from other circumstances and evidence adduced by prosecution. [Nizam v. State of Rajasthan, (2016) 1 SCC 550]

Criminal Trial — Sentence — Principles for sentencing — Age of Accused: It is the duty of court to award proper sentence having regard to the manner in which offence was committed. As two persons died and a number of others were injured in the incident, age of the appellant-accused who had fired fatal bullets (90 yrs), and the time elapsed since occurrence (40 yrs), is of no relevance. Undue sympathy would do more harm to criminal justice system undermining the public confidence in the efficacy of the system. [Abdul Waheed v. State of U.P., (2016) 1 SCC 583]

Criminal Trial — Sentence — Principles for sentencing — Duty of court while imposing sentence: Discretion conferred by legislature to impose sentence, must be exercised on reasonable and rational parameters. Discretion cannot be allowed to yield to fanciful notions. Misplaced sympathy is also not warranted. Extremely liberal sentencing policy, having no legal permissibility and social acceptability, deprecated. [Raj Bala v. State of Haryana, (2016) 1 SCC 463]

Customs — Classification — Diagnostic equipment (models like BTS 302, BTS 310, BTS 320 and BTS 370) for analysis of blood samples using photometry principle — Whether classifiable as “auto analysers” under Entry 9030.89 or as photometers: What was imported is equipment which is to be used in a pathological lab for automatic analysis of blood samples. Models BTS 310 and BTS 320 were imported with inbuilt software that contained programs for analysis and interpretation, and an importer can change such programs to suit its own convenience. Held, from this it does not follow that what has been imported is only a photometer. [Dr Reddy’s Laboratories v. Commr. of Customs, (2016) 1 SCC 480]

Education and Universities — Appointment/Recruitment — Judicial review/validity: Where Committee of Experts is constituted, normally court should not interfere in matter of selection/promotion, unless mala fides are attributed or allegations of arbitrariness are proved. [U.V. Mahadkar v. Subhash Anand Chavan, (2016) 1 SCC 536]

Excise — Central Excise Act, 1944 — S. 4 (as amended in 1973, 1996, 2000 and 2003) — Transportation charges for transport of excisable goods up to buyer’s premises: Buyer’s premises cannot be considered as a “place of removal” of excisable goods for the purposes of S. 4. Inclusion of transportation charges in computing the value of goods for the period 28-9-1996 to 31-3-2003, held, not justified in present case, as in facts and circumstances of present case, property in goods had passed to buyer at factory gate of assessee. [CCE & Customs v. ISPAT Industries Ltd., (2016) 1 SCC 631]

Excise — CENVAT/MODVAT credit — Credit in favour of manufacturer — Significance and features of:  Manufacturer gets credit once declaration is made and acknowledgment is obtained. Such credit can be used anytime during payment of duty on excisable product. Credit is indefeasible. Benefit of credit can be denied to manufacturer only when it has been illegally or irregularly taken. Credit may be taken against final product that becomes available. Credit is akin to tax paid by manufacturer. [CCE v. New Swadeshi Sugar Mills, (2016) 1 SCC 614]

Excise — Limitation: As four show cause-cum-demand notices were issued to assessee and demand in respect of three of the notices was dropped after assessee submitted its reply, also fourth show-cause notice dt. 4-5-1994 related to the period between April 1989 to November 1992, hence, order of CESTAT holding show-cause notice to be barred by limitation, upheld. [CCE v. Sangko Pharmaceuticals, (2016) 1 SCC 582]

Labour Law — Casual Labour/Daily Wager/Temporary Employee — Daily Wager: As Finance Officer, University of Lucknow appointed respondents as daily wagers in Accounts Section not against any sanctioned posts and order dt. 3-8-1990 issued by Vice-Chancellor clarified that daily wagers would not be allowed to continue until prior written approval was accorded by Vice-Chancellor. When no such approval was taken qua respondents and since original appointment was not made following due process of selection as envisaged by relevant rules, respondents not entitled to regularization. [Lucknow University v. Akhilesh Kumar Khare, (2016) 1 SCC 521]

Penal Code, 1860 — S. 302 — Murder trial — Circumstantial evidence — “Last seen together” theory: Close proximity between last seen evidence and death, should be clearly established. As prosecution failed to lead evidence establishing “last seen together” theory beyond reasonable doubt to prove guilt of accused, reversal of conviction by High Court, confirmed. [State of Karnataka v. Chand Basha, (2016) 1 SCC 501]

Penal Code, 1860 — S. 302 r/w S. 120-B — Murder — Criminal conspiracy: Proof of mere knowledge or discussion of the facts would not be sufficient to prove criminal conspiracy. As prosecution merely proved that all the accused were present in Delhi (where deceased was shot dead) on the date of occurrence, and that alleged motorbike and car used in incident belonged to accused R-2, but Involvement of said vehicles in commission of crime was never proved neither was any prior meeting of minds of accused proved, nor was any action, individually or in concert, proved against any of the accused. Hence, reversal of conviction, affirmed. [State (Govt. of NCT of Delhi) v. Nitin Gunwant Shah, (2016) 1 SCC 472]

Prevention of Corruption Act, 1988 — Ss. 7 and 13 — Quantum of punishment: Due to mitigating factors, sentence in case of illegal gratification can be reduced to statutory minimum, but not below that. [Kiran Chander Asri v. State of Haryana, (2016) 1 SCC 578]

Sales Tax and VAT — Concession/Exemption/Incentive/Rebate/Subsidy — Entitlement to concession during intervening period between announcement of policy decision in gazette and its notification under relevant statute by Department concerned: 2004 Industrial Policy provided exemption of tax concession up to 31-3-2009. State Government vide Noti. dt. 29-5-2009 extended benefit of concessional rate in CST from 1-4-2009 up to 31-3-2013. Consequently, notification under Act of 1956 was issued by Excise and Taxation Department on 18-6-2009 granting concessional rate with immediate effect for the period ending 31-3-2013. Hence, contention of State Department that appellant is not entitled to concessional rate for intervening period from 1-4-2009 to 18-6-2009, unacceptable. Held, State Government cannot speak in two voices. Government departments are bound to implement government policy. Once it is decided by Council of Ministers to extend tax concession granted by 2004 Industrial Policy beyond 31-3-2009, benefit of tax concession cannot be snatched till issuance of statutory notification of such policy decision. Further clarified, it is not altogether new concession that has been notified but it is an extension of 2004 Industrial Policy. [Lloyd Electric & Engg. Ltd. v. State of H.P., (2016) 1 SCC 560]

Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 — Regns. 11(1) and 14(1) — Requirement of making a public announcement: Requirement laid down in Regulation 11(1) viz. to make a public announcement to acquire additional shares by person holding from 15% to 55% of shares/voting rights in a company is triggered every time aggregate percentage of such additional acquisitions at any point of time during the financial year exceeds 5%. It does not depend on net accounting at the end of a financial year. Concept of permitting creeping acquisitions by permitting acquisitions of not more than 5% of the additional shares or voting rights in a company, limits the period for such acquisition to a financial year ending on 31st March. However, the concept does not dilute requirement of making a public announcement within time mentioned in Regn. 14(1) if the acquisition, even if only made once and divested, is of more than 5% of shares or voting rights in the target company. Trigger to make public announcement cannot be on basis of net accounting at end of financial year. Public announcement has to be made every time 5% threshold is crossed as per requirements of Regns. 11 & 14. [Kosha Investments Ltd. v. SEBI, (2016) 1 SCC 542]

Service Law — Departmental Enquiry — Charge/Charge-Sheet: when the services of appellant were terminated by respondent PNB (transferee bank) for alleged irregularities committed by him while working with Hindustan Commercial Bank (transferor bank) on amalgamation, contention that since charge-sheet was issued by officer of same rank as delinquent employee i.e. AGM of PNB, entire departmental proceedings stood vitiated, not tenable. Though appellant was working as AGM in transferor bank, but admittedly was a Scale III officer in PNB, while rank of AGM in PNB is Scale V and no grievance was raised by appellant at any time that he was reduced in rank or that his placement was incorrect. Besides, on amalgamation in terms of applicable 1977 Regulations disciplinary authority of Scale III Officer in PNB was AGM. Hence, contention rejected. [Jagadish Lal Gambhir v. Punjab National Bank, (2016) 1 SCC 488]

Service Law — Promotion — Judicial Review/Validity: Court cannot interfere in absence of perversity, mala fides, etc. If the assessment made by DPC is perverse or not based on record, or proper record has not been considered by DPC, then alone is it open to High Court under Art. 226 of the Constitution to remit the matter back to DPC for decision afresh, but it cannot assess the merit on its own on perusal of the service record of one or the other candidate. [H.S. Sidhu v. Devendra Bapna, (2016) 1 SCC 495]

Service Law — Recruitment Process — Selection Process/Procedure: Challenge to selection process/procedure, when candidate consciously takes part in selection process, not permissible. Decision of experts about suitability of a candidate, generally, cannot be examined under writ jurisdiction in absence of mala fides, bias or arbitrariness. Where aspirant takes part in selection process without any demur, he cannot question it later. [Madras Institute of Development Studies v. K. Sivasubramaniyan, (2016) 1 SCC 454]

Service Law — Termination of service — Proper mode: Mere passing of an order of dismissal or termination would not be effective unless it is published and communicated to employee concerned. Thus, if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated. [Dulu Devi v. State of Assam, (2016) 1 SCC 622]

Specific Relief Act, 1963 — Ss. 10 and 20 — Decree for specific performance — Grant of: Under S. 20, grant of relief is discretionary. Court not bound to grant specific relief merely because it is lawful to grant it. Such discretion in exercise of power should not be arbitrary but it has to be guided by judicial principles. When recitals about suit property i.e. area of land sold, not clear and plaintiff buyer was not doing any substantial acts nor suffering monetary loss, specific relief, held, rightly denied by trial court. Earnest money directed to be refunded with 18% interest to balance equities. [Hemanta Mondal v. Ganesh Chandra Naskar, (2016) 1 SCC 567]

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 — S. 20(4) proviso — Applicability of: Tenant who has built, or acquired in vacant state a house which can be used for residential as well as commercial purposes is covered by S. 20(4) proviso of the 1972 Act, hence, not protected under S. 20(4) of the said Act. [Samar Pal Singh v. Chitranjan Singh, (2016) 1 SCC 626]

W.B. Public Health-cum-Administrative Service (Placement on Trainee Reserve) Rules, 2008 — R. 9 — Government sponsorship for pursuing further studies to in-house candidates — Entitlement to: Noti. dt. 24-3-2015 states that Medical Officers who had acquired postgraduate diploma/degree by availing Trainee Reserve (TR) facilities in last 3 yrs (1-4-2012 to 31-3-2015) would not be allowed further TR facility during the year 2015. In terms of R. 9 placement of doctors was at discretion of Government and merely because appellants who had availed TR facility in 2012 which was completed in the year 2014 were allowed to appear in Postgraduate Medical Admission Test in 2015 in category of government-sponsored candidates, and had found place in select list did not give them a right as in-house doctors to get priority over their seniors who had completed their diploma course earlier and were in queue for a period prior to 1-4-2012. [Tapas Kumar Mandal v. State of W.B., (2016) 1 SCC 573]

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